Andhra HC (Pre-Telangana)
K. Mallikarjuna Vara Prasad vs K. Poornachander Rao (Died) And Ors. on 7 July, 2006
Equivalent citations: 2006(6)ALD333
JUDGMENT V.V.S. Rao, J.
1. The sole defendant is the appellant. One K. Poorna Chandra Rao represented by his General Power of Attorney holder (GPA holder), Mrs. P. Santhakumari filed a suit being O.S. No. 67 of 1984 for declaration of title, delivery of possession and mesne profits from June, 1980 till delivery of possession. The Court of Subordinate Judge, Markapur, where the suit was instituted, dismissed the suit after regular trial. The Court of Additional District Judge, Ongole, however, allowed the appeal being A.S.No. 43 of 1989 filed by the respondents decreeing the suit. This Judgment of the lower appellate Court is now assailed as vitiated by error of law. At the outset, the fact of the matter as summarized by the trial Court may be stated in brief. The parties are referred to as per the cause title in the suit.
2. One Krishnavajjula Ramabhupala Sarma (Sarma, for brevity), the father of the defendant was the owner of suit schedule land admeasuring Acs. 11.42 in Survey No. 8 situated at Narsingapuram Village. He allegedly sold the land to the plaintiff under registered sale deed, dated 14.10.1963, for a consideration of Rs. 350/-. Plaintiff took possession and continued to be in possession to the knowledge of the defendant. He perfected title by adverse possession. When the land came under Ayacut, the defendant was tempted to occupy the land and in spite of objections by the plaintiff, the defendant entered upon the land forcibly in June, 1980. The plaintiff Poorna Chandra Rao died and his legal representatives were brought on record as plaintiffs 2 to 5 by virtue of the orders passed by the trial Court in I.A. No. 1039 of 1987, dated 22.12.1987.
3. The defendant opposed the suit. The institution of the suit by a holder of GPA without leave of the Court was pointed out. It is the further case of the defendant that the suit schedule property was not absolute property of Sarma and that it was ancestral property of Sarma and his brother Kotaiah, who was the adoptive father of the defendant. Sarma, his sons and defendant were co-owners and joint tenants of the property managed by the defendant because Sarma was very old by 1963 and his sons were staying elsewhere. The sale deed, dated 14.10.1963, allegedly executed by Sarma in favour of plaintiff is not true and is not supported by consideration. It is not binding on the defendant. The allegation that the possession was delivered to plaintiff was denied and defendant asserted that the plaintiff was never in possession within the statutory period to claim adverse possession.
4. The trial Court framed as many as nine issues including five additional issues. The plaintiff, Poorna Chandra Rao or his legal representatives did not give evidence. The holder of GPA, Shantakumari was examined as P.W.I and marked Exs.A.1 to A.8. P.Ws.2 to 4 were examined to corroborate the evidence of P.W.I. The defendant examined himself as D.W.I and two more witnesses, D.Ws.2 and 3, were examined, and marked Exs.B.1 to B.I7, which include copies of Adangals and cist receipts. On consideration of this evidence, the trial Court recorded a finding that plaintiff is not entitled for the relief of declaration of title and recovery of possession, that the defendant is co-owner and not absolute owner of property and that the defendant perfected the title by adverse possession. The trial Court also observed that the plaintiff failed to prove the possession within the statutory period.
5. In plaintiffs appeal, A.S. No. 43 of 1989, the learned Additional District Judge formulated six points for consideration. Adjudicating these points, the lower appellate Court came to the conclusion that the deceased first plaintiff had title to the property, that Ex.A.2, sale deed, is supported by consideration and binding on the defendant and that the defendant failed to prove adverse possession. The appellate Court also recorded finding that defendant failed to prove that it is joint family property and that the suit is not barred by time. The second appeal was admitted by this Court to consider the following substantial questions of law.
A. When the suit is filed on the basis of the title to recover possession of the lands and when the title is not proved in the said lands, whether the burden of proof does not lie on the plaintiff to prove that he was in possession of the said property and the suit was filed within 12 years, from the date of dispossession.
B. When the plaintiff failed to prove his title, whether the burden of proof lies on the defendant that the plaintiff was not in possession of the suit property within 12 years? In these circumstances, whether Article 165 of the Limitation Act, is applicable or Article 64 is applicable?
C. Whether the revenue records viz., No. 2 Adangals and 10(1) accounts cannot be taken into consideration to prove the possession and enjoyment of the suit land?
6. Learned Counsel for the defendant/ appellant pressed two grounds. He submits that when the plaintiff was not examined himself and has failed to prove his title, such a plaintiff cannot succeed without discharging the burden of proof that he acquired the title by adverse possession and that he filed the suit within 12 years from the date of dispossession. He points out that the suit was filed by Shantakumari as GPA holder without obtaining the leave of the Court and she alone gave evidence as plaintiff. She had no personal knowledge of execution of Ex.A.2, sale deed, or the management of the property, and therefore, the evidence of P.W.I in the nature of hearsay evidence, which in law, cannot be treated as valid and cogent. It is also brought to the notice of this Court by the time trial commenced the plaintiff died and his legal representatives were brought on record as plaintiffs 2 to 5 and nothing prevented one of them to come to the witness box and give evidence to prove the plaintiffs case and then examine the Shantakumari to corroborate the evidence of plaintiff. As this was not done, plaintiffs cannot be said to have proved suit claim as framed. Nextly, it is contended by the learned Counsel for the appellant that even if Ex.A.2, sale deed, is taken as proved, plaintiff did not produce any evidence to show that he was in possession of the suit when he was dispossessed and that the suit was within twelve years from the date of dispossession.
7. This Court admitted the second appeal on 13.12.1994 and ordered notice to respondents/ plaintiffs. Notice was served on the holder of GPA of respondents 2 to 5 on 14.9.2000. In spite of the same, none appears for the respondents and they remained ex parte.
8. When the plaintiff seeks a declaration of title based on a transaction evidenced by a registered document, can he also take the plea of adverse possession to succeed in the suit? This question is no more res Integra. In P. Periasami v. P. Periathambi , and Mohan Lal v. Mirza Abdul Gaffar , the Supreme Court laid down the dicta that when the suit is based on a registered document, the plaintiff cannot be permitted to take the plea of adverse possession in the event of losing his case with regard to validity of the document. In Karnataka Board of Wakf v. Government of India , the Supreme Court summarized the law in the following terms:
A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. See S.M. Karim v. Bibi Sakina . In P. Periasami v. P. Periathambi's case (supra), this Court ruled that: (SEE p.527, Para 5) Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar's case (supra), that is similar to the case in hand, this Court held: (SCC pp.640-41,Para4)
4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e., upto completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.
9. In this case, the plaintiff pleaded execution of Ex.A.2, sale deed by Sarma in his favour and also pleaded that on the date of execution of the document, he was put in possession and he continued to be in possession by paying revenue. Nonetheless, he filed the suit for delivery of possession alleging that he was forcibly dispossessed by the defendant in June, 1980. The trial Court found that Ex.A.2, is not validly proved by the plaintiff and that possession was not delivered. When once Ex.A.2 was held to be invalid and not binding on the defendant, the question of adjudicating possession of the plaintiff may not strictly arise. If such a question falls for consideration, the burden is strictly on the plaintiff to prove that within the statutory period of 12 years, he was in possession of the property. Ex.A.2 was allegedly executed by Sarma on 14.10.1963 and plaintiff was dispossessed in June, 1980, after lapse of about 17 years. The suit was presented on 13.4.1984 within four years from the alleged date of dispossession. This would be a valid consideration to prove that in 1963 itself he was put in possession under Ex.A.2. Be that as it is, the appellate Court considered the validity of Ex.A.2, sale deed, in favour of the plaintiff and also came to the conclusion that plaintiff was put in possession and that the defendant did not perfect the title by adverse possession. In this document, as rightly submitted by the learned Counsel for the appellant, the burden was certainly on the plaintiff to prove both the aspects of the matter, namely, that he was put in possession on the date of execution of Ex.A.2, sale deed, and that Ex.A.2 was validly executed by Sarma, which is binding on the defendant. The difficulty arises here. Whether the plaintiff validly proved his case is the question?
10. A perusal of General Power of Attorney, which is marked as Ex.A.1 would show that the plaintiff, working as a lecturer in N.B. Science College, Hyderabad, appointed P.W.I, Shantahumari, resident of Arundelpet, Guntur as the former's duly constituted power of attorney inter alia to sell, lease or mortgage plaint schedule property and to appoint Advocate or Advocates to prosecute or defend the proceedings of the case. Ex.A.1 was executed and registered on 13.2.1980 at Hyderabad. The suit was filed in the Court at Markapur as the suit schedule property was constituted within the territorial jurisdiction of the said Court. Apart from this, as P.W. 1, GPA holder, admits that she was not present when Ex.A.2, sale deed, was executed and that she for the first time visited the property in 1965. A reading of her deposition would show that she is not aware of many things personally. The question, therefore, is whether as a GPA holder, her evidence can be relied on. Differently put, whether a GPA holder can speak for the party on whose behalf, such GPA filed the proceedings before the Court.
11. In Kanakapudi Bharathy v. Authority under Section 50 of A.P.S.E. Act-cum-Lahour Officer , a learned Single Judge of this Court considered the question whether power of attorney holder of party is entitled to appear as witness on behalf of the said party? Taking into consideration Order III Rule 2 of Code of Civil Procedure, 1908 (CPC) and Rule 32 of Civil Rules of Practice, 1980, and placing reliance on the decision of Rajasthan High Court in Rampratap v. Harinarayan , this Court held:
... Word 'acts' used in Rule 2 Order 3 CPC does not include the act of Power of Attorney Holder to appear as a witness on behalf of the petitioners. Power of Attorney Holder of a party can appear only as a witness in his personal capacity to speak about the facts which are within his personal knowledge about the case, but, he cannot appeal as a witness on behalf of a party in the capacity of that party. ... In this context, it is also relevant to refer to Section 118 of Evidence Act which reads that "all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or giving rational answers to those questions, by tender years, extreme oldage, disease, whether of body or mind, or any other cause of the same kind". Thus, testimonial compulsion is the very foundation of the Law of Evidence for without such compulsion every refusal to give evidence will render administration of justice impossible. It is not a legal fetish. It is a necessity and also the general rule. The petitioners cannot stay back without entering into witness box and subjecting themselves to cross-examination by the second respondent. Further, even if the petitioners are unable to appear in Court, a Commissioner for recording their evidence may be taken out under the relevant provisions of the Code of Civil Procedure.
12. A Division Bench of this Court in Podelly Chinna Chinnanna v. Bandari Pedda Bhumanna , considered a similar question. Initially, the C.R.P.No. 4460 of 1999 was before a learned Single Judge, who referred the question to the Division Bench whether a person holding general power of attorney on behalf of party to the suit can be exempted as a witness on its behalf. The Division Bench answered the question as under:
Therefore, the only requirement for a person to come into the witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e., to speak. The competency as contemplated is a very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak. These two aspects cannot be mixed upto reject a person from entering the witness box. As long as one holds proper authority under a Power of Attorney or otherwise, he is fully competent to come as witness on behalf of the said party. The competency as provided for further gets extended under Section 120 thereof providing that in any civil proceedings the husband or wife of a party to a suit shall be a competent witness.Therefore, it cannot be said that the Power of Attorney holder cannot be said to be a incompetent as witness on behalf of the party/executant.Neither the decisions reported in Ramprasad's case (supra) or K. Bharathi's case (supra), considered these aspects and as such it has to be held that the aforesaid decision is not correct. It is thus held answering the reference that a Power of Attorney holder is a competent witness on behalf of the party/ executant and further that the effect and relevancy of such evidence has to be considered from proper perspective on the facts and circumstances of each case.
(emphasis supplied)
13. The above passage from the Judgment of the Division Bench would show that if the power of attorney also authorizes the holder, he/she can give evidence on behalf of the party about the relevant facts in issue and such evidence cannot be taken as the evidence of the party itself. The holder of GPA is always competent to give evidence, in the case, to support the case of the party whom he is representing. This is also considered by this Court in S. Padmavathamma v. S. Sudha Rani , wherein it was held.
... Since, the power of attorney is not a substitute for a party, he cannot speak about the facts which are exclusively within the knowledge of the party concerned, who is his "principal". In respect of the facts within his or her personal knowledge, it is the concerned party i.e., "the principal" that can be speak. In respect of such matters the evidence of the general power of attorney of the party, would be hearsay and so is not admissible in evidence. A general power of attorney of such party, merely because of such power would not become a substitute to the party and so he is incompetent to depose about the facts which are within the exclusive personal knowledge of the party.
14. Applying the above principles to the facts on hand, the following would emerge. Under Ex.A.1, General Power of Attorney, P.W.I was not given authorization to give evidence by the plaintiff. Therefore, the principle laid down by the Division Bench in Podelly Chinna Chinnanna's (supra), would be attracted. Secondly, Shantakumari cannot be substituted to the plaintiff Poorna Chandra Rao. Thirdly, P.W.I herself admits in the evidence that she was not present when Ex.A.2, sale deed, was executed by Sarma in favour of the plaintiff. Be it noted, apart from the competency of a person to give evidence as contemplated under Section 118 of Evidence Act, 1872, the evidence of a person is not personally in the know of the things, whether or not it is hearsay evidence is suspect from many angles. In this case, when P.W.I gave evidence Poorna Chandra Rao, the plaintiff, was alive. For reasons best known, he did not choose to come to witness box to speak about the facts. His evidence would be crucial and best evidence to prove his case. The evidence of GPA as P.W.I at best can corroborate the evidence of plaintiff, which is absent in this case. Therefore, as rightly contended by the learned Counsel for the appellant, the plaintiff did not prove the case as pleaded.
15. In the result, the Judgment of the lower appellate Court cannot be sustained. Accordingly, the same is set aside and the judgment and decree of the trial Court dismissing the suit of the plaintiff is confirmed. The second appeal is accordingly allowed. No costs.